"Cell" Phones

Purchasing a small amount of illegal drugs for personal use is generally a misdemeanor. However, under federal law, 21 U.S. Code Sec.843(b), using a "communication facility" to aid in the commission of a felony is itself a felony. So what happens if someone purchases a misdemeanor-size amount of cocaine using a felony-sized communication device (in this case, a cell phone)?

This question is now pending in the U.S. Supreme Court. Defendant Salman Khade Abuelhawa used his cell phone to set up small cocaine buys; he was caught, then charged with and convicted of a felony. The Court of Appeals upheld the conviction (PDF) and Abuelhawa has appealed to the Supreme Court.

Abuelhawa argues that his felony conviction is invalid. After all, if he'd set up the cocaine buys in person, he'd be guilty only of a misdemeanor. So why should he be punished more severely for using a cell phone? The Court of Appeals' answer? The harsher punishment is warranted because cell phones make it easier for criminals to violate the law without being detected. If you want to read a transcript of the argument in the Supreme Court, visit http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-192.pdf.

While Abuelhawa's situation seems of little national significance, the Supreme Court's decision may help determine the future course of the so-called War on Drugs. Harsh sentences for non-violent drug offenders have done a lot to swell prison populations but they have done little to curb consumption of illegal drugs. If the Supreme Court upholds Abuelhawa's felony conviction, prosecutors will be encouraged to seek ever-harsher penalties for drug offenses. A reduction of the sentence to a misdemeanor may signal that the Court thinks it's time for the government to try out some alternative methods of conducting the War on Drugs.